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The Impact of Body Technologies Upon the Teaching of Criminal Law

Andrew Burke

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© July 2020 Centre for Professional Legal Education Bond University 14 University Drive Robina QLD 4226 Australia www.bond.edu.au/cple AUTHOR Dr Andrew Burke Macquarie Law School Macquarie University andrew.burke@mq.edu.au This Report was commissioned by the Bond University Centre for Professional Legal Education as part of the research project ‘The Impact of Emergent Technologies Upon the Teaching of Core Law Units in the Australian Law Curriculum’. The project has Ethics Approval from Bond University: Ethics Reference Number CP01045. ABOUT THE CENTRE The Centre for Professional Legal Education is a community of legal educators, researchers, practitioners and administrators who collaborate in defining, understanding and promoting best practice in the teaching of law. The work of the Centre has a particular emphasis upon the changing nature of professional legal education and training in the context of an internationalised, transformed and technology-enhanced legal services sector. DISCLAIMER While the Centre for Professional Legal Education (‘the Centre’) and the Author have made every effort to ensure the accuracy of information presented in this publication, they do not guarantee the accuracy or completeness of that information. The information is provided as general information only and any use of or reliance on it should only be undertaken on a strictly voluntary basis after an independent review by a qualified legal practitioner (or other expert). The Centre and the Author are not responsible for, and disclaim all liability for, any loss or damage arising out of the use of or reliance on this publication. LICENCE The Centre for Professional Legal Education (‘the Centre’) grants parties utilising this Report a non-exclusive, royalty-free, worldwide, non-transferable licence to use, reproduce, adapt and exploit the content of the Report for education and research purposes. In return, the Centre requires that parties utilising the Report provide an acknowledgment of the Centre and of the authors of the Report in any use of the content of the Report.

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ABOUT THE PROJECT

This Report was commissioned by the Bond University Centre for Professional Legal Education as part of the research project ‘The Impact of Emergent Technologies Upon the Teaching of Core Law Units in the Australian Law Curriculum’. The structure of the accredited Australian law degree – both the Bachelor of Law (LLB) and the Juris Doctor (JD) – continues to be determined primarily by the need to demonstrate coverage of the ‘Priestley 11’ (P11) prescribed areas of knowledge: administrative law, civil dispute resolution, company law, constitutional law, contract law, criminal law and procedure, equity, evidence, professional conduct, property law and tort law. The P11 areas of knowledge are taught via a series of core law units within the law degree, the content of which is relatively consistent across Australian law schools. Meanwhile, the practice of law is undergoing rapid change, largely because of the emergence of disruptive digital technologies. There is a clear need for law schools to adjust the way law is taught to ensure law graduates continue to be effectively prepared for contemporary

legal practice. Many of the recent reports regarding the future of legal education and of the legal profession call for an increased emphasis in the law curriculum upon teaching digital skills and knowledge of emergent technologies, equipping work-ready graduates for technology-enhanced or technology-centric practice, while at the same time emphasising the need to retain the existing emphasis upon more traditional legal knowledge and skills. The challenge confronting Australian law schools is the fact that many of the legal academics responsible for teaching the core law units lack the time, resources and expertise to identify and evaluate the impact of emergent technologies upon the law curriculum. The objective of this Project is to assist Australian law schools to address this challenge.

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The Project is investigating the impact of emergent technologies upon the teaching of the core law units in the Australian law curriculum. The Project Leadership

Team has settled the overall research questions and method and identified six categories of emergent technologies (CETs).

CET DESCRIPTION EXAMPLES Experiential technologies New ways of

experiencing the world around us

Virtual reality, augmented reality, mixed reality, digital twins

Body technologies New ways of using our bodies

Wearables and implantables, genome editing

Information technologies New ways of thinking, communicating, processing and storing information

Artificial intelligence, advanced machine learning, digital technology platforms, mesh app and service architecture, conversational systems, adaptive security architecture, inevitable architecture, big data, cloud computing, quantum computing, biometrics and digital id

Creative technologies New ways of creating and making

3D printing, additive manufacturing, robots

Connection technologies New ways of connecting

The internet of things, smart cities, intelligent things, intelligent apps, automated vehicles, bots/robots

Transaction technologies New ways of transacting

Blockchains and distributed ledgers, cryptocurrencies, smart contracts, ‘everything as a service’

Legal scholars from a variety of Australian law schools have been invited to identify the impact of each category of emergent technology upon each P11 area of knowledge, and to prepare a Report identifying the

impact of particular emergent technologies upon a particular P11 area of knowledge and any consequent changes to the way the P11 area of knowledge should be taught.

The focus of this Report is upon the impact of body technologies upon the teaching of criminal law. PROJECT LEADERSHIP TEAM The current Project Leadership team is:

Professor Nick James Bond University njames@bond.edu.au Associate Professor Francina Cantatore Bond University fcantato@bond.edu.au Associate Professor Wendy Bonython Bond University wbonytho@bond.edu.au Assistant Professor Kylie Fletcher Bond University kfletche@bond.edu.au

The following former Leadership Team members made important contributions to the Project:

Associate Professor Tania Leiman Flinders University Associate Professor Kate Galloway Griffith University Associate Professor Bobette Wolski Bond University Associate Professor Jodie O’Leary Bond University

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WHAT ARE BODY TECHNOLOGIES? [A description of the relevant category of emergent technologies.]

Body-worn cameras are a form of ‘wearable’ body technology which are intended to record what the wearer can see and hear. In recent years they have been widely adopted by the various Australian state and territory police services for use by operational police in their daily duties. Their use is also widespread in comparable foreign jurisdictions such as the United States of America. In NSW, police use of body-worn cameras is directed by the Body-Worn Video Camera Standard Operating Procedure.1 This document directs that all officers wearing a police uniform and engaged in operational duties should wear a camera as part of their uniform.2 Officers are to activate their camera “when it is appropriate to do so” using the officer’s own judgment and discretion.3 The camera should be worn overtly, and officers are to advise those being recorded of the presence of the camera and that it is recording their

actions and conversation once it is activated, or if it is not practicable to do so before or at the time, as soon as is reasonably practicable after activating the recording.4 At the end of a shift, officers are to return their camera to a docking station from where the footage uploads automatically; it remains on a local server for a period of six-months prior to deletion, unless tagged by an officer as having evidentiary value.5 Once tagged, footage is moved to secure storage and managed in accordance with the State Records Act 1988 (NSW).6 Police use of body-worn cameras in NSW is governed by s 50A of the Surveillance Devices Act 2007 (NSW). This section makes clear that police do not need to obtain consent from those being recorded; it is sufficient that the use is overt, or that the incident was inadvertent, unexpected or incidental to overt camera use.

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LITERATURE REVIEW [A summary of current and likely future impact of the technologies upon the law in the P11 area of

knowledge, and the way law in the area is administered, enforced and practised, according to recent scholarship and media commentary.]

The majority of the literature on police body-worn cameras falls within the criminology discipline, rather than criminal law. Much of the literature notes that the evidence base to justify the use of police body-worn cameras is limited.7 Numerous published studies,

1 New South Wales Police Force, Body-Worn Video Camera Standard Operating Procedure (November 2018). 2 Ibid, 6. 3 Ibid. 4 Ibid, 7. 5 Ibid, 11-12. 6 Ibid. 7 See eg: Callum Christodoulou, Helen Paterson and Richard Kemp, ‘Body-worn cameras: evidence base and implications’ (2019) 31(4) Current Issues in Criminal Justice 513, 514.

principally from the USA and Great Britain as well as some from Australia, seek to evaluate whether the cameras are effective at achieving the claimed benefits.8 The key claimed benefits are: improved police behaviour, improved behaviour from those who interact

8 See eg: Barak Ariel et al, ‘“Contagious accountability” a global multisite randomized control trial on the effect of police body-worn cameras on citizens’ complaints against the police’ (2017) 44(2) Criminal Justice and Behaviour 293; Darren Henstock and Barak Ariel, ‘Testing the effects of police body-worn cameras on use of force during arrests: A randomised control trial in a large British police force’ (2017) 14(6) European Journal of Criminology 720; Jon Maskaly et al, ‘The effects of body-worn cameras (BWCs) on police and citizen outcomes’ (2017) 40(4) Policing: An International Journal of Police Strategies & Management 672.

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with the police and efficiency gains via time savings in the field and an increased number of early pleas of guilty.9 The findings from those studies are mixed. A recent Australian study which used a sample of 498 police officers in Western Australia found benefits in time savings during field interviews, but no evidence that the cameras reduce problem behaviour, with citizens’ complaints increasing and no influence on rates of assaults against police.10 Another recent study reviewed all of the empirical studies found or accepted for publication through to June 2018 worldwide (70 studies in all), finding that cameras have not had statistically significant or consistent effects on most measures of officer and citizen behaviour, or citizens’ views of police.11 A smaller number of empirical studies view the technology through a procedural justice lens, studying police interactions with citizens to determine if cameras enhance or degrade procedural justice.12 These studies are of direct relevance to the teaching of criminal procedure, which is primarily concerned with procedural fairness or justice. Qualified support for the use of cameras can be found in these studies, which also raise important definitional debates around procedural justice.13 High profile incidents involving the fatal use of police force, whilst the officer was wearing a camera, have attracted academic attention. In 2015 police officer Ray Tensing was charged with murder following the

9 Christodoulou (n7) 514. 10 Joseph Clare et al, ‘The results of a randomized trial of police body-worn video in Australia’ (2019) Journal of Experimental Criminology 1. 11 Cynthia Lum et al, ‘Research on body-worn cameras; What we know, what we need to know’ (2019) 18 Criminology & Public Policy 93. 12 See eg: John McCluskey et al, ‘Assessing the effects of body-worn cameras on procedural justice in the Los Angeles Police Department’ (2019) 57(2) Criminology 208; Mustafa Demir et al, ‘Body-worn cameras, procedural justice and police legitimacy: a controlled experimental evaluation of traffic stops’ (2020) 37(1) Justice quarterly 53. 13 McCluskey (n12) 208. 14 Kevin Grasha, ‘Expert: Tensing’s statements don’t match bodycam video’, Cincinnati Enquirer (online, 12th June 2017) https://www.cincinnati.com/story/news/2017/06/12/v

shooting of Samuel DuBose in Cincinnati, one of the incidents that sparked the Black Lives Matter movement.14 Despite the shooting being captured on three body-worn cameras, the unsteady nature of the footage allowed events to be contested and the prosecution hired a video forensics expert to provide a frame-by-frame breakdown in expert evidence.15 Despite this evidence, the jury hung in two subsequent trials and Tensing was never convicted of any offence. The implications of police body-worn cameras for criminal procedure, as a legal discipline, are under-studied. The literature which can be considered legal, rather than criminological, is limited and focuses on issues of privacy, accountability and discretion.16 These are of course key themes of criminal procedure. This literature seeks to integrate debates on police body-worn cameras into the broader scholarship on policing.17 This literature is generally critical of the widespread adoption of police body-worn cameras and argues that cameras should not be viewed as a panacea for underlying, structural issues of power imbalance and police accountability.18 No literature could be located which considers police body-worn cameras in the context of legal education. This presents a clear gap in the literature. In this vein, it is noteworthy that the two main textbooks used for criminal procedure units in NSW are virtually silent on police body-worn cameras despite both being published very recently.19

ideo-analyst-expected-tensing-retrial-monday/385685001/. 15 Alice Klein, ‘Cops on camera’ (2017) 236(3148) New Scientist 22. 16 See eg: Emmeline Taylor, ‘Lights, camera, redaction… Police body-worn cameras; autonomy, discretion and accountability’ (2016) 14(1) Surveillance and Society 128; Darren Palmer, ‘The mythical properties of police body-worn cameras: a solution in the search of a problem’ (2016) 14(1) Surveillance and Society 138. 17 Palmer (n14) 138. 18 Ibid 142. 19 Roderick Howie, Paul Sattler and Marissa Hood, Hayes & Eburn Criminal Law and Procedure in New South Wales (LexisNexis Butterworths, 6th ed, 2019); David Brown et al, Criminal Laws; Materials and Commentary on Criminal Law and Process of New South Wales (The Federation Press, 7th ed, 2020).

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PRACTITIONER PERSPECTIVES [A summary of the views of various law teachers and legal practitioners regarding the current and likely

future impact of the technologies upon the law in the P11 area of knowledge, and the way law in the area is administered, enforced and practised.]

For this study, three currently practising criminal lawyers were interviewed in addition to three academics currently teaching Priestly 11 criminal procedure units at Sydney universities. All three of the currently practising lawyers are defence-oriented, as opposed to prosecutors: two solicitors in private practice and one barrister. All of the practitioners agreed that the current and likely future impact of police body-worn cameras is not upon the law of criminal procedure but rather upon how this area of law is administered, enforced and practiced. There was a clear divergence of perspectives between the practising lawyers and the legal academics who were interviewed. The practising lawyers regarded the advent of police body-worn cameras as a very significant change with far-reaching implications. These perceived implications are generally practical – such as increasing

the amount of work required to represent a client – and also relevant to more abstract concerns such as police discretion and accountability. The legal academics, in contrast, either had little awareness of the issue or perceived body-worn cameras to be a technical development of limited relevance to the study of criminal procedure. The practical implications identified by the practising lawyers were wide-ranging. All emphasised the importance of pre-trial discovery of any footage and the necessity of issuing subpoenas to obtain any footage not voluntarily disclosed by the prosecution. All agreed that police body-worn cameras can be a valuable tool to quickly understand the strength of the prosecution case, leading in some cases to early guilty pleas rather than defended matters and in other cases greatly assisting the defence by verifying the defendant’s version of

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events. One participant expressed the importance of scrutinising footage to determine if any portions are inadmissible prior to any defended hearing or trial, a time-consuming task often requiring digital editing skills. Two participants discussed the importance of being familiar with internal police policies regarding body-worn cameras, such as the Standard Operating Procedure, to enable effective cross-examination of officers regarding their discretionary use of their cameras.20 One practical observation of particular note is that the cameras are enabling police to expand the time frame in which they can capture admissions in an admissible format. Section 281 of the Criminal Procedure Act 1986 (NSW) requires that any admissions for a strictly indictable offence must be tape recorded. In the past, the only mechanism for police to do this was at the

police station using specially equipped interview rooms. The body-worn cameras now allow police to record admissions at the crime scene or in transit to the police station, at a time prior to the accused being able to obtain legal advice and representation.21 All of the practising lawyers were strongly of the view that the introduction of police body-worn cameras has not changed police behaviour to a noticeable degree. They provided multiple examples of instances when police had recorded themselves acting unlawfully and then served the footage as evidence without any apparent awareness that their conduct was unlawful. They also observed that police are, at times, exercising their discretion as to when to turn on their cameras in a self-serving manner, and expressed frustration that police are frequently serving footage either late or not at all.

CONSEQUENCES 1 [An explanation of how this will change what current and future lawyers need to know and be able to do.]

20 New South Wales Police Force (n1). 21 Provided that police comply with section 139 of the Evidence Act 1995 (NSW) which stipulates that before starting questioning the investigating official must

caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.

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New technology is not merely a tool; it becomes part of, and potentially contributes to, the power imbalances and abuses that characterise criminal procedure. It is essential that lawyers develop a critical approach that equips them to question if, for example, police use of that technology is self-serving. This requires not only critical thinking skills, but increasingly also digital literacy. One of the study participants, a practising lawyer, identified a need for digital expertise so that lawyers are able to determine if a video has been edited or enhanced in some way. All of the practising lawyer participants emphasised the importance of lawyers being familiar with police internal protocols and policies regarding body worn cameras. This knowledge is fundamental to both pre-trial discovery and to effective cross-examination of officers when footage appears to be selective or for some reason has not been served with the brief of evidence. It was also identified by one participant that lawyers need to be familiar with admissibility issues concerning video. Criminal practitioners are generally experienced with arguing admissibility issues for written statements

or oral evidence; video footage presents different issues such as the physical appearance of the accused or the capture of irrelevant or prejudicial comments from bystanders. The capture of admissions on video prior to a formal, recorded interview at the police station is effectively bypassing protections for the accused including legal advice or representation. Lawyers need to be familiar with this development, to advise clients accordingly and to be prepared to argue admissibility issues for such evidence. It is worth noting that these consequences are as relevant to lawyers in prosecution roles as they are to lawyers in defence roles. Solicitors working for the Director of Public Prosecutions will be required to identify inadmissible portions of video and then digitally edit to remove those portions. They will also need to be familiar with both police internal protocols and policies and admissibility issues concerning admissions in order to assess the strength of prosecution briefs and prepare for trial.

CONSEQUENCES 2 [An explanation of how this will change the way the core law unit should be taught to law students,

including the scope of the unit, the learning outcomes for the unit, the learning activities undertaken by the students, and how students within the unit should be assessed.]

Some of the issues raised by police body-worn cameras are relatively straightforward to include in a criminal procedure unit because they resonate with the existing themes and well-established theoretical perspectives. The ubiquity of discretion is such a theme, and the discretion that police have as to when to turn their cameras on is entirely consistent with police discretion generally. This theme can be illustrated in legal teaching by examples including: the decision to arrest or not, the decision to use force or not, the decision to bring charges, and which charges, or not, and so on. To these should be added the discretion to activate a body-worn camera, or not. Other issues raised by police body worn cameras are more challenging to include, and require the academic staff member responsible to be familiar with the changed procedural environment. Unit scope Digital literacy is not generally taught in criminal procedure units, or indeed in law degrees at all. This

should change. This study has identified a need for digital literacy skills to both edit videos and to be able to detect when videos have been edited or enhanced in some way. The need for digital literacy is not confined to criminal procedure, and whether it is best included at the unit level or at the program level is a matter for each institution. Some, if not most, academic staff currently teaching criminal procedure will lack the skills and knowledge required to teach digital literacy, which may be a persuasive argument for including it at the program level. Those staff should however teach the significance of digital literacy, even if they cannot teach digital literacy itself. Examples such as the trials of Ray Tensing for the murder of Samuel DuBose, discussed above, where expert evidence was required to interpret the body-worn camera footage on a frame-by-frame basis, illustrate the need for both prosecutors and defence lawyers to be familiar with digital technology and the issues that can arise.

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Learning outcomes Encompassing digital literacy within criminal procedure units would likely require modification of the learning outcomes. It is common for learning outcomes in criminal procedure units to include analysis of the context in which criminal procedure exists. No criminal procedure unit offered at an Australian university can be found which includes analysis specifically of the technological context. Given the rapid adoption of new technology in criminal procedure, of which body-worn cameras is only one example, consideration should be given to adding this specific emphasis. Learning activities Consideration of police body-worn cameras can be readily included in lecture content. Examples of body-worn camera footage of contentious incidents are available online and make excellent teaching tools. For small group tutorial-type learning activities, preparatory tasks should not be limited to readings based upon theoretical perspectives or academic analysis of body-worn cameras, but rather include actual footage where possible or news reports of criminal investigations and/or trials where body-worn camera footage is relevant. It would be ideal to build upon discussion of theoretical perspectives and analysis by discussing how the footage or reports relate to those perspectives and analysis. This would also allow for consideration of practical issues relevant to professional practice, posing the question ‘if you were the prosecution or defence lawyer in this case, what issues might this footage pose for you?’ Assessment Assessment should continue to include tasks that require demonstration of the students’ understanding of the key themes and theoretical perspectives of criminal procedure. The need for a sound theoretical

foundation and critical thinking skills has not diminished, and indeed will equip students to better contextualise the role that police body-worn cameras play. Assessment should also include where possible tasks that demonstrate the key professional skills identified as necessary by this study, and the digital literacy necessary to fully apply those skills. Such professional skills exercises should reflect the modern reality of criminal courtrooms where evidence now comes from video of the incident as often, if not more often, as from oral testimony. There is a clear risk that law students will be ill-equipped to practice law if their preparation reflects an out-dated understanding of the courtroom environment. A wide range of assessment tasks could be utilised, from mooting-type activities to written analysis of a particular piece of footage. An example that the author has used in assessment is a client interview based upon a written hypothetical regarding police powers. Students are required to interview their ‘client’ and ask the questions necessary to obtain the relevant information regarding their client’s arrest to ascertain if police acted lawfully. Students should include questions regarding body-worn cameras which are informed by an understanding of both the law and internal police protocols and policies: was the officer wearing one; was it turned on and when; was it turned off and when; what did the officer say, if anything, regarding the camera, and so on. A written assessment task, rather than simply having a written question, could require students to watch a segment of body-worn camera footage and then analyse it. This would be suited to evidence law units (closely related to criminal procedure), where students would argue whether the footage, or portions of it, was inadmissible. In criminal procedure units, students could be required to critique the footage against legal requirements, internal police protocols and procedures or theoretical perspectives and academic analysis.

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BIBLIOGRAPHY AND RECOMMENDED RESOURCES [A list of resources referred to in the Report plus additional resources.]

Ariel, Barak et al, ‘“Contagious accountability” a global multisite randomized control trial on the effect of police body-worn cameras on citizens’ complaints against the police’ (2017) 44(2) Criminal Justice and Behaviour 293 Brown, David et al, Criminal Laws; Materials and Commentary on Criminal Law and Process of New South Wales (The Federation Press, 7th ed, 2020) Christodoulou, Callum, Helen Paterson and Richard Kemp, ‘Body-worn cameras: evidence base and implications’ (2019) 31(4) Current Issues in Criminal Justice 513 Clare, Joseph et al, ‘The results of a randomized trial of police body-worn video in Australia’ (2019) Journal of Experimental Criminology 1 Demir, Mustafa et al, ‘Body-worn cameras, procedural justice and police legitimacy: a

controlled experimental evaluation of traffic stops’ (2020) 37(1) Justice quarterly 53 Grasha, Kevin, ‘Expert: Tensing’s statements don’t match bodycam video’, Cincinnati Enquirer (online, 12th June 2017) https://www.cincinnati.com/story/news/2017/06/12/video-analyst-expected-tensing-retrial-monday/385685001/ Henstock, Darren and Barak Ariel, ‘Testing the effects of police body-worn cameras on use of force during arrests: A randomised control trial in a large British police force’ (2017) 14(6) European Journal of Criminology 720 Howie, Roderick, Paul Sattler and Marissa Hood, Hayes & Eburn Criminal Law and Procedure in New South Wales (LexisNexis Butterworths, 6th ed, 2019) Klein, Alice, ‘Cops on camera’ (2017) 236(3148) New Scientist 22

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Lum, Cynthia et al, ‘Research on body-worn cameras; What we know, what we need to know’ (2019) 18 Criminology & Public Policy 93 Maskaly, Jon et al, ‘The effects of body-worn cameras (BWCs) on police and citizen outcomes’ (2017) 40(4) Policing: An International Journal of Police Strategies & Management 672 McCluskey, John et al, ‘Assessing the effects of body-worn cameras on procedural justice in the Los Angeles Police Department’ (2019) 57(2) Criminology 208 New South Wales Police Force, Body-Worn Video Camera Standard Operating Procedure (November 2018) Palmer, Darren, ‘The mythical properties of police body-worn cameras: a solution in the search of a problem’ (2016) 14(1) Surveillance and Society 138 Taylor, Emmeline, ‘Lights, camera, redaction… Police body-worn cameras; autonomy, discretion and accountability’ (2016) 14(1) Surveillance and Society 128 Recommended resources ACLU, Police Body-Mounted Cameras: with right policies in place, a win for all (Web page, March 2015) < https://www.aclu.org/other/police-body-mounted-cameras-right-policies-place-win-all>.